Salaita

John
Protevi / protevi@lsu.edu 1
Academic Freedom, ed. Jennifer Lackey
DRAFT of 26 November 2016

ACADEMIC FREEDOM AND THE STEVEN SALAITA CASE

This essay will explore the academic freedom aspects of the case of Steven Salaita
and the University of Illinois at Urbana-Champaign (UIUC). I will first present the
facts of the case, then a sketch of the legal issues. I will then outline some elements
the history of academic freedom relative to extramural political speech, and then
add some remarks on what the Salaita case teaches us when seen through a
Realpolitik view of academic freedom in which the success of claims to it depend on
the force of the individual legal actions and collective faculty pressure that are
brought to bear against administrators and trustees. I conclude with some
speculations as to changes the Salaita case might bring to current practices of
academic freedom.

Two prefatory remarks are in order. First, in the interest of full disclosure, I became
involved in the case in support of Salaita the day the story went national, writing an
Open Letter on my blog (Protevi 2014a), and then two days after that, I offered my
services as organizer of the philosophy profession’s boycott of UIUC, an effort that
gathered 550 signatories by September 2, 2014 (Protevi 2014b). Second, I won’t
analyze Salaita’s political speech here relative to the limits of academic freedom.
Instead I will take a proceduralist view. While in principle some faculty extramural
speech lacks the protection of academic freedom and hence might disqualify a
person from a faculty post due to the speech’s calling into question the professional
qualifications of the professor, the proper body to examine whether Salaita’s speech
did so would have been a UIUC faculty panel that, per American Association of
University Professors (AAUP) guidelines, takes his statements in the context of the
entirety of Salaita’s scholarly output and teaching record.1 The actions of UIUC
Chancellor Phyllis Wise and University of Illinois (UI) Board of Trustees President
Robert Kennedy and others are thus procedurally objectionable by their taking onto
themselves faculty rights to be the judge of disqualifying speech. In this view,
academic freedom and faculty governance go hand-in-hand, but that also brings us
to face the harsh truths about faculty ability to enforce claims to their proper role in
judging academic freedom cases.

1 The UIUC Committee on Academic Freedom and Tenure report (CAFT 2014) recommended such a
faculty panel but the AAUP report (2015) states it would have been unwarranted: “While the CAFT
report raises questions about Professor Salaita’s fitness with respect to his scholarship,
recommending further investigation by a faculty committee, this subcommittee sees no reason to
address or explore that scholarship. Chancellor Wise did not explicitly raise any concerns about
Professor Salaita’s scholarly work as the initial reason for refusing to forward his appointment to the
board, nor did she retrospectively offer such a concern as a reason during her meeting with the
subcommittee. It would therefore be presumptuous for this subcommittee to construe the
chancellor’s reasons for her actions against Professor Salaita in a way that she has not stated herself
or to consider any reasons beyond those that she has cited” (AAUP 2015, 14).
John Protevi / protevi@lsu.edu 2

FACTS OF THE CASE

Steven Salaita’s career narrative and the early events of his hiring at UIUC are
mundane; I take the main points here from the AAUP report on his case (AAUP
2015). None of these facts are in dispute (what was disputed by UIUC was that
Salaita had a binding contract with them, given the need for formal board approval).
Salaita received his PhD in 2003 from the University of Oklahoma in American
Indian Studies. He then worked at the University of Wisconsin-Whitewater from
2003 to 2006, when he was hired at Virginia Tech University for its English
Department, receiving promotion to Associate Professor with tenure in 2009.

In February 2013, Salaita was the unanimous choice of the faculty in the Program of
American Indian Studies (AIS) at UIUC for an Associate Professor position. The
month of September 2013 sees approvals of the hire by the UIUC administration,
including Chancellor Phyllis Wise and Provost Ilesanmi Adesida. On October 3, the
Interim Dean writes an offer letter to Salaita, which, in the words of the AAUP
report, notes “the presumably standard formality—that the appointment was
contingent on approval by the board of trustees.” On October 9 Salaita accepts the
UIUC offer, asking for a start date of August 2014. During the October 2013 to July
2014 period Salaita “was given teaching assignments and asked to submit course
syllabi, which he did. Arrangements were made to pay for his moving expenses and
to see to his computer needs” (AAUP 2015).

The context for the next steps is Salaita’s political activity. The author of Israel’s
Dead Soul (Salaita 2011), Salaita was most likely not unknown to those opposed to
the Boycott, Sanctions, Divestment (BDS) movement. His prominence there most
likely rose due to his role in supporting the American Studies Association resolution
supporting a boycott of Israeli institutions. In defense of that resolution’s passage he
had written several blogposts in December 2013 at Mondoweiss (Salaita 2013a) and
Electronic Intifada (Salaita 2013b). Then, during July 2014, Salaita’s tweet line
included tweets highly critical of the Israeli prosecution of Operation Protective
Edge in Gaza, using vulgarity and vivid imagery. (Salaita 2015 shows that his tweet
line also contained tweets expressing opposition to anti-Semitism, empathy with
Israeli citizens harmed in conflict, and solidarity with Jewish critics of the Israeli
operations in Gaza [8-9].)2

We now see the story wend its way up the media chain, as mainstream media allow
themselves to comment on issues because lower-level outlets have made an issue of
it. The beginning is William Jacobson, a clinical law professor at Cornell University
Law School, who writes a post at his blog, Legal Insurrection, on July 19, 2014,

2 The question of the proper unit of analysis for tweets – the individual tweet, the set of tweets on the
same topic, the entire tweet line – has no easy answer.

concerning Salaita’s tweets (Jacobson 2014). Two days later, on July 21, the Daily
Caller, a relatively prominent conservative website, reported on the Jacobson
blogpost (Owens, 2014). Then the break into the mainstream media occurs the next
day with the Champaign-Urbana News-Gazette, reporting that Salaita “has drawn the
ire of a conservative website” (Garennes 2014).

It’s during this time that Chancellor Wise learns of Salaita’s tweets. After several
days of communication between Wise and community members and donors (see
Document 10 in CAFT 2014), Wise, without consulting AIS program officers, the
College Dean, or the Provost, writes to Salaita on August 1 that she had decided not
to submit the appointment to the board as “an affirmative Board vote confirming
[his] appointment” was “unlikely” (AAUP 2015). The news of Wise’s decision, and
the Salaita case in general, went national with an August 6, 2014 article in Inside
Higher Education (Jaschik 2014).

From then until the Board decision on September 11, there was an unrelenting
stream of blogposts, tweets and Facebook posts, with heated debates in comments,
as well as petitions, op-eds, boycott news, cancellations of appearances, and
denunciations of the Wise decision by professional organizations (Protevi 2014d).
Thousands of emails were sent to UIUC (a small sample: Panagia and Martel 2014).
In a move that sparked even more controversy, and to which we will return later,
Chancellor Wise sent a mass email to UIUC community on August 22, “The Principles
On Which We Stand,” which, together with an accompanying Board note, invoke
“civility” as a touchstone for acceptable faculty speech. Response from the UIUC
community itself during this time was divided. A number of departments issued
statements of no confidence is Wise’s leadership (Protevi 2014c), but there were
also op-eds, petitions, and newspaper ads in support of Wise (Wurth 2014).

Sometime in early September Chancellor Wise decides to forward Salaita’s
appointment to the Board, which, in its September 11 meeting, votes down Salaita’s
position, 8-1. In December, the UIUC Committee on Academic Freedom and Tenure
report (CAFT 2014), issues a report recommending Salaita’s fitness be examined by
a UIUC faculty panel, only to have the report rejected by UIUC administration in
January 2015. Then on January 29, 2015, Salaita announces a lawsuit for damages
on contract law and free speech grounds (a FOIA suit for release of UIUC emails was
also filed). The big break in the case occurs on August 6, 2015, when a Federal
District Court ruled against key portions of a UIUC motion to dismiss Salaita’s suit,
allowing his suit on contract and free speech grounds to proceed. Finally, on
November 12, 2015 a settlement is announced between Salaita and UIUC for
$875,000 (of which $600,000 to Salaita and $275,000 legal fees).

The final chapter so far is Salaita at American University of Beirut (AUB). In July
2015, he is hired by in a visiting capacity as Edward Said Chair of American Studies.
In early 2016 Salaita was offered a permanent position as director of the Center for

American Studies and Research. However, on March 30 AUB President Fadlo Khuri
invalidates the Salaita offer. A student petition circulated on April 13 claimed
outside pressure was brought to bear. The next day Khuri responds, citing on the
basis of “procedural irregularities” in the search / offer process (Jaschik 2016).
Then, on April 20, a student “town hall” airs claims of calls by IL Senators to Khuri in
summer 2015 about initial one-year Salaita hire (Students for Salaita 2016).

LEGAL ISSUES

Salaita filed two suits in 2015 (legal documents and press releases from Salaita’s
lawyers are available at CCR 2015b). One was a Freedom of Information Act suit,
seeking release of emails. This seemed a routine matter until it later came out that
Chancellor Wise and others had tried to conceal their correspondence by using
private email accounts. (UIUC 2015a). When those efforts failed and further emails
were released (UIUC 2015b), Wise resigned. (There was a round of negotiations as
to Wise’s post-Chancellor role and a performance bonus, but they needn’t overly
concern us here; for details see Cohen 2015).

The important suit for our concerns was filed by Salaita in January 2015, seeking
“equitable and monetary relief for violations of his constitutional rights, including
free speech and due process, and for breach of contract, promissory estoppel,3
tortious interference with contractual and business relations, intentional infliction
of emotional distress, and spoliation” (CCR 2015a, 4-5). As is common, the
defendants challenged Salaita’s suit. And as we noted above, the most important
legal event was a Federal court ruling by Judge Harry Leinenweber in August 2015
allowing some parts to go forward (Salatia v Kennedy et al., No. 1:2015cv00924 -
Document 59 (N.D. Ill. 2015); Palumbo-Liu 2015 is a good non-technical discussion.)
In ruling on a motion to dismiss, the judge must weigh the evidence in favor of the
plaintiff (in this case, Salaita) so that all the plaintiff must have shown in the original
suit is that a trial is needed to resolve the dispute.

The university won a major victory in that the court dismissed the tortious
interference, and lesser victories on the emotional distress, and spoliation
(destruction of evidence) claims. Regarding the interference claim, the judge
protected the donors as exercising their free speech in complaining of Salaita’s hire.
Had the tortious interference claim gone forward, pressure from donors to settle
quickly might have come up, to prevent disclosure proceedings. Not being able to
wield that threat however meant Salaita lost some leverage in the timing and
amount of the eventual settlement.

3 “Promissory estoppel” means, in lay terms, that the university would be liable for expenses
incurred by Salaita acting on the university’s promise of employment, even if, strictly speaking, a
valid contract did not exist until Board approval. Salaita could not collect on both breach of contract
and promissory estoppel, but if the former claim failed he would still have been able to pursue the
latter. Dorf 2014 briefly covers the topic.

However, Salaita won major victories in both contract law and free speech areas
from the judge. Of particular interest to us, of course, is the free speech issue, but the
contract issue does have some bearing in a discussion of academic freedom. The
university wanted to claim there was no contract with Salaita so that it could claim
Salaita was not yet an employee, which would have meant, in its interpretation, that
its own Statutes limiting unilateral administrative action in academic freedom cases
would not have covered Salaita (more on this in the following section). Even if it
won on the breach of contract claim (by showing no contract existed), it would have
been exposed on the “promissory estoppel” claim, but would have been saved the
embarrassment of having been shown to have violated its own rules.

The most salient academic freedom issue here, however, is UIUC’s claim that it
objected to the tone and not the content of Salaita’s speech. It had to make such a
claim as UIUC is a public school, which means it has First Amendment obligations to
not practice “viewpoint discrimination” in hiring and firing decision. The
administration’s strategy was to claim the tone of Salaita’s tweets meant that he
would not be able to discharge his duties of fair teaching; this goes to the “Pickering
balancing test” issue, to which we now turn.

First amendment protection for academic freedom has two basic restrictions:
Pickering and Garcetti (see Squires 2015 for analysis of both rulings). Under the
“Pickering balancing test,” the “interest of the State, as an employer, in promoting
the efficiency of the public services it performs through its employees” can be taken
into account against “the interests of the teacher, as a citizen, in commenting upon
matters of public concern.” And Garcetti said that speech by a public employee
under his or her “official duties” wasn’t protected; although the Court did mention
academic freedom as warranting special concern, it did not resolve it.

On the first amendment issue, court rejected the “tone” rather than “content” claim
by UIUC:

The University’s attempt to draw a line between the profanity and incivility
in Dr. Salaita’s tweets and the views those tweets presented is unavailing; the
Supreme Court did not draw such a line when it found Cohen’s “Fuck the
Draft” jacket protected by the First Amendment. Cohen v. California, 403 U.S.
15, 26 (1971). The tweets’ contents were certainly a matter of public
concern, and the topic of Israeli-Palestinian relations often brings passionate
emotions to the surface. Under these circumstances, it would be nearly
impossible to separate the tone of tweets on this issue with the content and
views they express. And the Supreme Court has warned of the dangers
inherent in punishing public speech on public matters because of the
particular words or tone of the speech. (Salaita v. Kennedy et al, No.

1:2015cv00924 - Document 59 (N.D. Ill. 2015) at 26; cited in Palumbo-Liu
2015)

Hence, UIUC, as a public institution, faced exposure on First Amendment grounds for
its actions in denying Salaita employment, as the court ruled its distinction of tone
and content, forming part of its Pickering claim, would not hold as grounds to
dismiss Salaita’s lawsuit. Had the case gone to trial, the university and Board might
have won against the breach of contract claim, by showing that the Board approval
was necessary for a full contract, but it seems quite unlikely it would have prevailed
against the promissory estoppel claim, which then would have kicked in (Dorf
2014). Whether they would have won the free speech claim via a Pickering
balancing test is difficult to say; it most likely would have been, at best, an uphill
battle for them (Leiter 2014). Thus exposed on both contract grounds (either for
breach of contract or for promissory estoppel) and on free speech grounds, the
university found it in its interest to settle with Salaita before the case went to trial.
The calculation of a settlement seems to have involved the low probability of
winning the free speech claim; how much they would pay on either contract issue;
limiting further damage to reputation; limiting further legal costs.

ACADEMIC FREEDOM RELEVANT TO SALAITA CASE

The 19th century in Germany saw the development of two linked concepts of
academic freedom: Lernfreiheit, the freedom for students to pick courses, to live free
of overt administrative control, and to judge for themselves the truth of professorial
statements, and Lehrfreiheit, the freedom for professors to research and teach
(Hofstadter and Metzger 1955, 386-388). However, extramural speech was
generally not thought by the Germans to be covered by Lehrfreiheit: “it was
generally assumed that professors as civil servants were bound to be circumspect
and loyal, and that participation in partisan politics spoiled the habits of
scholarship” (Hofstadter and Metzger 1955, 389).

In the American context, the early AAUP efforts downplayed student freedom and
emphasized teacher neutrality in the classroom; the assumption was student
impressionability. This might have been a holdover from earlier struggles over
doctrinal control of teaching in religious colleges (Hofstadter and Metzger 1955,
410-411). After several high-profile cases of firings of professors for political speech
(of which the Ross at Stanford is widely discussed; see Veysey 1965, 400-407),
American activists for academic freedom added extramural statements to the
protections in the landmark 1915 AAUP “Report on Academic Freedom” (Hofstadter
and Metzger 1955, 396; 407-412).

The guiding idea of the early academic freedom statements is that universities serve
the public so that professors, administrators, and trustees must protect academic
freedom as it allows robust debate, which was seen as essential to knowledge

production and testing, Now early 19th century American college debates about
academic freedom concerned freedom of theological speculation and freedom of
natural science from religious dogma, while later 19th century American university
debates concerned how knowledge in the political and social realm can upset
economic interests. If professors should be immune from economic pressure and
public opinion, it is then the obligation of administrators and trustees to look to
long-term public interest in having a society with protected areas of debate free
from economic reprisal, as opposed to short-term public opinion, susceptible as it is
to moral frenzy.

The AAUP emphasized the interrelation of academic freedom, tenure, and faculty
governance. Tenured professors could claim immunity from summary dismissal and
instead demand due process in the form of a faculty led hearing with the
opportunity to contest evidence. Extramural statements could only be introduced as
grounds for dismissal if they demonstrated scholarly incompetence in the faculty
member’s expertise, and any such attempt must place the extramural statements in
the context of the entire work output of the faculty member. While neutrality in
extramural statement was not required, as it was in classroom behavior, decorum
remained an important issue however. The 1915 report claimed that “it is obvious
that academic teachers are under a peculiar obligation to avoid hasty or unverified
or exaggerated statements, and to refrain from intemperate or sensational modes of
expression” (discussed at Hofstadter and Metzger 1955, 411).

In an important article, John K. Wilson (2015) clarifies changes in the position of
AAUP with regard the “obligation” of a dignity standard as it relates to extramural
statements. Ironically enough, the changes were prompted by the UIUC firing of
Professor Leo Koch in 1960. In 1940, the AAUP spoke of the status of professor as
one that imposes “special obligations” to be accurate, restrained, and respectful of
the opinions of others, even as professors “should be free from institutional
censorship or discipline” for exercising their free speech rights as citizens
(emphases added). By 1964 the AAUP had weakened the former and strengthened
the latter. In Wilson’s words, the 1964 position amounts to an affirmation of “a
fundamental right of faculty to speak and a special obligation that rests on the
conscience of individual faculty members rather than being imposed by the
institution” (Wilson 2015). More changes were in store however. A set of
“Interpretive Comments” from 1970 “suggested that the proper place for addressing
extramural utterances was in the realm of professional ethics, not institutional
enforcement” (Wilson 2015).

Finally, Wilson’s article is useful to us here in noting that the governing Statutes of
the University of Illinois follow AAUP guidelines and place “accuracy, forthrightness,
and dignity” as something of which a professor should be “mindful.” In cases in
which the administration feels a faculty member has failed to keep those qualities in
mind while speaking as a citizen, unilateral administrative actions are limited to the

following remedy: “the president may publicly disassociate the Board of Trustees
and the University from and express their disapproval of such objectionable
expressions.” This limitation on unilateral action does not preclude the
administration from convening a faculty panel to examine whether extramural
speech calls into question the professional qualifications of a faculty member due to
its disregard for fact, logic, or fair treatment of opponents (CAFT 2014).

CIVILITY STANDARD

We now turn to the question of “civility” as a limit to academic freedom. I isolate
"civility" from the fog of the statements by the Board and by Wise, because it is the
dangerous part of what they say.4

Before we turn to Wise’s August 22, 2014 email, we should deal with her later
attempts at damage control. An undated follow-up to the email reads in part:

As I have said many times since its release, this massmail message was not
intended to establish a policy on speech or a campus speech code. I believe
any such code would be an unacceptable restriction on the academic freedom
of our faculty. It was not my intention to make our campus a focal point for
the complicated, nuanced and ongoing national debate on the nature of
civility and higher education, and I sincerely regret that my message did so.
(Wise 2014)

It may not have been her intention to make UIUC a focal point of debate on “civility,”
but her email, and the accompanying statement by the Board (see Wilson 2014b for
analysis) had precisely that effect. And while Wise’s email is a wooly-headed mess,
we shouldn’t think it isn’t characteristic of administrative blather on the issue,
simultaneously affirming platitudes about academic freedom while eviscerating it in
practice by unilateral action that cuts out the faculty review safeguard, and by
sloppy thinking that conflates what needs to be distinguished. As for charity in
interpretation and acknowledgment that the email was written in the heat of the
moment and under extreme pressure, well, the fact that Wise was not up to the task
of defending her actions means that she shouldn’t have undertaken them.5

4 I pass over the history of “civility” as a trope in putting down resistance to colonial occupation in
order to focus on its use by Wise and the Board; however, the resonance of its colonial and its
administrative use in being employed against a faculty member hired in AIS and writing on
comparative indigenous resistance to settler colonialism is a theme in CAFT 2014, Salaita 2015, and
elsewhere.
5 The precise relation of Wise to the Board remains a matter of dispute. Was she made to carry water
for them and then got thrown under the bus, as she later claimed in FOIA-released emails? (Meisel
2015). That might go to increasing personal sympathy for her, but I don’t see how being
bureaucratically outmaneuvered decreases her responsibility for the damages she did to Salaita’s
career and the dangers her ill-considered words pose to academic freedom for others.

The text of the email:

What we cannot and will not tolerate at the University of Illinois are personal
and disrespectful words or actions that demean and abuse either viewpoints
themselves or those who express them. We have a particular duty to our
students to ensure that they live in a community of scholarship that
challenges their assumptions about the world but that also respects their
rights as individuals.

As chancellor, it is my responsibility to ensure that all perspectives are
welcome and that our discourse, regardless of subject matter or viewpoint,
allows new concepts and differing points of view to be discussed in and
outside the classroom in a scholarly, civil and productive manner.

A Jewish student, a Palestinian student, or any student of any faith or
background must feel confident that personal views can be expressed and
that philosophical disagreements with a faculty member can be debated in a
civil, thoughtful and mutually respectful manner. Most important, every
student must know that every instructor recognizes and values that student
as a human being. If we have lost that, we have lost much more than our
standing as a world-class institution of higher education.

The first problem with the email is the expansion of protection from disrespect from
persons to “viewpoints themselves.” It’s prima facie nonsensical to talk about
“personal and disrespectful words or actions that demean and abuse either
viewpoints themselves or those that express them” since viewpoints, not being
persons, cannot be subject to personal disrespect. Even on a charitable reading that
restricts “personal” to “those that express” you still have an unacceptable restriction
to “respectful” speech directed to viewpoints. As was noted many times in
discussions of this remark, if an academic can’t direct “disrespectful words” at say,
climate change denial, then we have lost much more in vigorous debate than we
have gained in polite tone.

Next comes an unmotivated hauling in of students: “We have a particular duty to our
students to ensure that they live in a community of scholarship that challenges their
assumptions about the world but that also respects their rights as individuals.” But
at stake is Salaita’s extramural speech. By what means does that predict problems in
Salaita’s classroom, especially as Wise must have known from vetting Salaita’s
application dossier that there was no evidence of classroom trouble on the part of
Salaita at Virginia Tech?

As there was no evidence of past misconduct, Wise then shifts to guessing as to
potential problems with student “confidence”: “A Jewish student, a Palestinian

student, or any student of any faith or background must feel confident that personal
views can be expressed and that philosophical disagreements with a faculty
member can be debated in a civil, thoughtful and mutually respectful manner.” It’s at
best unclear how one is to measure threats to future student confidence, but even if
such access were possible, we are then back to the faculty governance issue: it’s
highly unlikely that a single administrator is in position to judge that better than a
relevant faculty panel would be, especially when the administrator has a STEM
background and the relevant classroom experience would be held by humanities
faculty members. And in any case, the time for that is in pre-hire vetting, not in ex
post facto attempts to justify a firing (or even “de-hiring” if one insists).

A final twist, brought out later and by others, but still relevant here, is Salaita didn’t
have any problems with students at Virginia Tech because those that would have
been offended avoided his classes. And from this past hypothetical, some felt
empowered to speculate that some students would avoid Salaita’s classes were he to
have been allowed to at UIUC. One commenter in the Journal of Academic Freedom
put it like this:

No doubt arguments would be made to the committee that the offending
tweets were taken out of context and that there is no evidence that Salaita
has ever punished opposing viewpoints in the classroom. But now that
Salaita has made his statements, one can assume that his classroom will be a
much different place. I imagine that if Professor Salaita were (re)instated to
the UIUC faculty some students would avoid him … (Eron 2015; emphasis
added).

If academic freedom is to hang on the ability of people to imagine that even the
inductively probable lack of future complaints (the induction base here being
Salaita’s past teaching record) would be due to students avoiding courses, then not
only are we concluding from past negatives, we are concluding from future ones as
well. What we see here is nothing less than the weaponization of hypothetical
student feelings to punish a faculty member with a good teaching record; this is
doubly objectionable as it takes advantage of decades of struggle by students against
real classroom isolation and belittling, in both the “microagression” and blatant
attack modes.

The statement from President Easter and the Board accompanying Wise’s email is a
similar mishmash, and needn’t detain us long, but the excoriating reply in Wilson
2014b deserves some attention.

The Board of Trustees argues that they represent a “university community
that values civility as much as scholarship.” Consider what this means: in
hiring faculty, the Board of Trustees is announcing that qualifications should
be 50% based on niceness, and 50% based on quality of scholarship

(teaching ability is apparently not important at all to the Board). This is the
recipe for a university of polite half-wits….

A POST-SALAITA REALPOLITIK OF ACADEMIC FREEDOM

Academic freedom is a field of contestation for many actors, but let us focus on
administrators and faculty members. We can define it as “freedom from threats to
employment for research, teaching, and extramural activities.”

While the founders of the AAUP promoted academic freedom as part of a
substantive liberal notion of civic improvement, the realist position would say that,
once academic administrators came to accept the idea of it, the offer of academic
freedom became for them primarily a recruitment and retention tool in searching
for tenured and tenure track faculty members (see Tiede 2015 on the early history
of the AAUP). (In practice academic freedom is extended only to tenure track faculty
members, and it is probably only trusted, if then, by tenured professors.) The
relative ubiquity of claims to support academic (very few higher education
institutions do not at least claim to protect academic freedom), however, means its
marginal contribution to the bottom line of tuition revenue, corporate and alumni
donations, and grants, for any one institution is negligible (parents and children
deciding what school to go to will rarely take academic freedom claims at school X
into account for it’s a background condition: all schools make that claim so nothing
sets X apart from Y or Z).

For faculty members, a reputation for a robust defense of academic freedom by an
administration will be of minimal effect for all but a few stars: in a heavily-weighted
buyer’s market the marginal attractiveness of a reputation for protecting academic
freedom (or at least not attacking it) is going to be quite small for entry-level people
with few other TT offers, or for mid-level people looking for improved salary and
teaching conditions.

Moreover, faculty members know that administrators must balance these potential
positives of academic freedom against potential drawbacks: protecting a faculty
member claim to academic freedom might jeopardize an institution’s reputation in
public opinion as measured by newspapers, blogs, television stations; might
increase complaints from stakeholders such as citizens, parents and students,
alumni; and above all might draw threats of punishment from those with leverage
over finances: politicians and donors.

Once hired, faculty members will take an administration’s plausible claim to defend
academic freedom into decisions about research, teaching, and extramural actions: a
high-risk / high reward strategy of overturning and / or publicizing conventional
wisdom benefitting corporate or political actors could only be rationally undertaken

when the faculty member is confident of administrative support for them under the
banner of academic freedom. Here is the potential for social utility: academic
freedom enables uncomfortable truths to be found and publicized.

On a Realpolitik view, taking the position that rights are enforceable claims (James
2003), then academics possess the right to academic freedom only to the extent that
we can enforce claims to it. The most we can say is that “the right to academic
freedom” serves as an ideal to which faculty aspire, one that might restrain
administrative action if backed by faculty sanctions.

We can see the aspirational status of academic freedom in the Salaita case. UIUC had
contract law exposure and First Amendment exposure if its Pickering balancing
claim failed, but no constitutional legal “academic freedom” exposure. As there is no
constitutional legal right to academic freedom, and contractual rights to academic
freedom vary, then enforcement of academic freedom claims rest with the ability to
exert pressure on the reputation of a university accused of violating academic
freedom. That pressure can take the concrete form of public statements, of boycotts
by invited speakers, and of the refusal to apply for jobs or to accept job offers.

Boycotts and public statements (blog posts, open letters, op-eds, and so on) attempt
to pressure administrators by shaming them with various audiences (public, alumni,
other administrators, faculty members) by contrasting their performance with their
statements committing the institution to academic freedom. Boycotts in particular
hope to encourage faculty at an institution to challenge their administration by
providing evidence of the harm the administration has done to the reputation of the
university.

While university administrators faced with boycotts would keep “reputation” in
mind, they are concerned with public as well as academic reputation, and they might
very well concretize the former as donations. Thus a potential administration
calculation would be the net effect on donations by one course of action or another,
pitted against the legal costs possibly incurred by one action or another, as well as
costs of potential payouts. A large factor in the latter though is the financial situation
of a faculty member bringing suit: how long can they hold out based on their income
and expenses?

In the case of refusals to apply for jobs or to accept job offers, the ability to enforce
claims to academic freedom is entangled with market forces. While senior faculty
members might very well have some leeway in refusing to apply for or to accept a
job offer, with a buyer’s market for junior faculty searches, administrations may be
tempted to bet that desperate junior professionals would not be able to keep from
applying for or accepting job offers, regardless of a university having been revealed
as having a weak commitment to academic freedom.


We mentioned above the theory that administrators and trustees must look to the
long-term public interest of a robust public sphere, protecting faculty members
from volatile public opinion, which is susceptible to moral panic and manipulation
by political and economic interests. The problem of course is that trustees are very
often aligned with well-established economic and political interests, and that
administrators can perceive the well-being of the institution – and / or of their own
careers – as more important than protecting the academic freedom of any one
particular troublesome professor. That’s the problem with the way abstract ideals
and concrete cases interact; almost all cases of administrators and trustees firing
professors are accompanied by paeans to academic freedom; it turns out you can
support academic freedom in principle and as an ideal, and just happen to think this
case exceeds its protections. From the perspective of faculty of course, the “just this
case” exception for administrators often seems to fall upon cases in which a faculty
panel would have found otherwise. That brings us around to the realist viewpoint
that academic freedom claims find enforcement only in individual legal action, but
against rich universities, is even a $2 million hit as in Salaita all that troubling? As
far as collective faculty action goes, how long can a boycott really last? What
happens when administrators just ignore AAUP censure? Will would-be faculty
applicants, in a severely tilted buyer’s marker, really factor in AAUP censure against
the chance for a tenure-track position?

SOME PREDICTIONS FOR POST-SALAITA EFFECTS

About the best we can hope for is that Board approval timelines will be regularized;
otherwise, it would be foolhardy for a professor to leave a tenured position pending
Board approval; that would have to be in hand before notice is given to the current
university.

It is possible that university social media policies will be adopted, along the lines of
the Kansas model (Kansas 2014). Originally released, and heavily criticized, in
December 2013 (see AAUP 2013), the May 2014 revision added the customary
paeans to academic freedom language as a figleaf, but kept the essentials. The
Kansas policy notes the Garcetti restriction for “official duties,” and Pickering
balancing, which it glosses as “interferes with the regular operation of the employer,
or otherwise adversely affects the employer’s ability to efficiently provide services,”
balanced against. “the employee’s right as a citizen to speak on matters of public
concern.” But “regular operation of the employer” is extremely vague and also
unacceptable leeway for administrative judgment (we can easily imagine a dean
saying “making me review this case and write this memo is interfering with the
regular operation of the school”). A further issue brought up by the Kansas policy is
brand management, which was certainly on the mind of Board member Helen Van
Etten on the occasion of the May 2014 revision: "I think we will see more and more
other universities start to have these same policies," she said. "We don't want to

damage their brand and we don't also want their universities to impair their
academic freedom” (Summers 2014). “Damaging the brand” is similarly vague and
threatening to academic freedom.

A dystopic future would include real-time monitoring, as mooted in Steinberg 2015.

Imagine for a moment that a team of social media experts, cybersecurity and
privacy pros, lawyers aware of relevant laws, and human resources
managers had crafted clear, detailed social media usage rules for employees
at the University of Illinois, that the school had required all new hires to
accept them as a condition of employment, and that the school had provided
Salatia with technology that warned him at the time that he was tweeting
that what he was doing was against school policy. Might he have refrained
from making the tweets? Might he have toned them down a bit? And had he
continued and posted them as he did, would the school have had a much
stronger case–thereby eliminating the incentive for attorneys to take
Salatia’s case? Or giving the school grounds to countersue? Or, maybe, on the
other hand, if the professionals had crafted a policy that had allowed him to
express his views as he did–for example, if the experts believed that the
University had no right to demand that employees not make such posts–
would the school have refrained from rescinding its offer, and instead
responded to his tweets in a different fashion? . . .”

Now of course the “different fashion” is, as we have seen UIUC policy: the president
will condemn and disassociate the university from the statements, but that’s it.

Even if we are to avoid vague and threatening social media policies and real-time
monitoring, it seems likely the social media history of prospective hires will be
scrutinized, and that someone in the Dean / Provost / Chancellor line will nix
“controversial” hires before the contract is offered. With sufficient care by
administrators not to mention speech (content or tone) but just to invoke
scholarship standards, candidates would lose the ability to claim free speech
infringement. Protesting a nixed search would then remain an internal matter, with
the burden falling on university faculty to make internal complaints. But then,
should they be punished for that, any suit would have a hard time with a judge
ruling that such internal speech would not merit protection, given Garcetti, as their
internal speech about university matters would be seen as pursuant to their official
duties. So we are back to the relatively thin reed of collective faculty action
elsewhere looking to harm university reputation; but bringing this to faculty
attention elsewhere would also expose the affected university’s faculty members to
Garcetti exempted punishment. This logic will be clear to department search
committees who will not bother with proposing “controversial” candidates. This
logic will also be clear to faculty members looking to move, incentivizing them away
from “controversial” extramural speech. Thus Garcetti plus social media analysis

will have a chilling effect on extramural statements by faculty members looking to
move. Hence it’s not just tenured professors who might feel protected in their
extramural statements, but tenured professors satisfied with their current position.

As has been the case for the past 100 years, faculty members will struggle to
preserve and strengthen academic freedom safeguards. For professors at private
schools, that means rigorous contract language. For professors at public schools, we
must get out from underneath a Pickering and Garcetti bound legal status of
academic freedom. With regard to Pickering, as Squires 2015 points out, “efficiency”
is not a university value. We don’t just provide a “service” like dispensing driver’s
licenses (even if we are in the credentials business). “Debate” has to be higher than
“efficiency” for us, and “civility” takes a terrible toll on debate. With regard to
Garcetti, it’s in the nature of professorial “official duties” to comment on public
matters. If we are to be seen as serving a public good then we need to comment on
such matters as part of our “official duties” as scholars (though not as
representatives of the university). We also need to address the problems Garcetti
poses to intramural speech, something not directly relevant to the Salaita case (pace
Eron 2015), but something certainly relevant to any robust notion of academic
freedom.

And finally, if I may end on a prescription rather than a prediction, public and
private university professors must struggle to extend academic freedom rights – and
that means increase our power to enforce claims – to all academics, regardless of
tenure status.


LIST OF WORKS CITED

American Association of University Professors (AAUP). 2013. AAUP Statement on
the Kansas Board of Regents Social Media Policy.
https://www.aaup.org/file/KansasStatement.pdf

AAUP. 2015. Academic Freedom and Tenure: The University of Illinois at Urbana-
Champaign. https://www.aaup.org/report/UIUC.

Center for Constitutional Rights (CCR). 2015a. Salaita v Kennedy et al. lawsuit.
https://ccrjustice.org/sites/default/files/attach/2015/02/Salaita_Complaint-with-
ExA_1-29-15.pdf

CCR. 2015b. Documents related to Salaita v Kennedy et al. Center for Constitutional
Rights. https://ccrjustice.org/home/what-we-do/our-cases/salaita-v-kennedy-et-al

Cohen, Jodi S. 2015 (August 14). U. of I. chancellor resigns again after board rejects
deal. Chicago Tribune. http://www.chicagotribune.com/news/ct-university-of-
illinois-phyllis-wise-statement-20150813-story.html

Committee on Academic Freedom and Tenure (CAFT) 2014. Report on the
Investigation into the Matter of Steven Salaita
https://cfaillinois.files.wordpress.com/2014/12/caft-report-on-steven-salaita-
case.pdf

Dorf, Michael. 2014. Academic Freedom in the Salaita Case. Verdict.
https://verdict.justia.com/2014/08/13/academic-freedom-salaita-case

Eron, Don. 2015. Professor Salaita’s Intramural Speech. Journal of Academic
Freedom, vol. 6. https://www.aaup.org/JAF6/professor-salaitas-intramural-speech

Garennes, Christine Des. 2014 (July 22). Soon to be UI prof’s Mideast posts drawing
ire. The News-Gazette. http://www.news-gazette.com/news/local/2014-07-
22/updated-soon-be-ui-profs-mideast-posts-drawing-ire.html

Hofstadter, Richard and Metzger, Walter. 1955. The Development of Academic
Freedom in the United States. New York: Columbia University Press.

Jacobson, William. 2014 (July 19). U. Illinois Prof: Zionists partly to blame for recent
outbursts of anti-Semitism. Legal Insurrection.

http://legalinsurrection.com/2014/07/u-illinois-prof-zionists-partly-to-blame-for-
recent-outbursts-of-anti-semitism/

James, Susan. 2003. Rights as Enforceable Claims. Proceedings of the Aristotelian
Society. New Series, 103: 133-147.

Jaschik, Scott. 2014 (August 6). Out of a Job. Inside Higher Education.
https://www.insidehighered.com/news/2014/08/06/u-illinois-apparently-
revokes-job-offer-controversial-scholar

Jaschik, Scott. 2016 (April 14). Another Lost Job for Salaita. Inside Higher Education.
https://www.insidehighered.com/news/2016/04/14/reports-circulate-american-
beirut-has-blocked-permanent-appointment

Kansas Board of Regents. 2014. Board Policy Manual.
http://www.kansasregents.org/resources/PDF/About/BoardPolicyManual.pdf

Leiter, Brian. 2014 (August 27). Salaita v. University of Illinois: The Constitutional
Issues. The Huffington Post. http://www.huffingtonpost.com/brian-leiter/salaita-v-
university-of-i_b_5726034.html

Meisel, Hannah. 2015 (August 18). Released Emails Show Path to Phyllis Wise’s
Resignation. Willradio.tv.online. https://will.illinois.edu/news/story/released-
emails-show-path-to-phyllis-wises-resignation

Owens, Eric. 2014 (July 21). America 2014: University of Illinois Professor Blames
Jews For Anti-Semitism. Daily Caller.
http://dailycaller.com/2014/07/21/university-of-illinois-professor-blames-jews-
for-anti-semitism/

Palumbo-Liu, David. 2015. Steven Salaita, Professor Fired for “Uncivil” Tweets,
Vindicated in Federal Court. The Nation https://www.thenation.com/article/steven-
salaita-professor-fired-for-uncivil-tweets-vindicated-in-federal-court/ Aug 11,
2015.

Panagia, Davide and Martel, James, eds. 2014. Epistolary Political Theory in the
Digital Age: Letters from the Salaita Affair. Theory & Event 17.4.
https://muse.jhu.edu/article/562817

Protevi, John. 2014a (August 6). Open Letter on the Illinois / Salaita / academic
freedom issue. John Protevi’s Blog.
http://proteviblog.typepad.com/protevi/2014/08/open-letter-on-the-illinois-
salaita-academic-freedom-issue.html


Protevi, John. 2014b (September 8). Over 550 Philosophers now noycotting UIUC
over the handling of the Salaita case. John Protevi’s Blog.
http://proteviblog.typepad.com/protevi/2014/09/over-550-philosophers-now-
boycotting-uiuc-over-the-handling-of-the-salaita-case.html

Protevi, John. 2014c (September 4). UIUC departments voting no confidence. John
Protevi’s Blog. http://proteviblog.typepad.com/protevi/2014/09/uiuc-
departments-voting-no-confidence.html

Protevi, John. 2014d (September 2). Open Letters from scholarly associations on the
Salaita case. John Protevi’s Blog.
http://proteviblog.typepad.com/protevi/2014/09/open-letters-on-the-salaita-
case.html

Salaita, Steven. 2011. Israel’s Dead Soul. Philadelphia: Temple University Press.

Salaita, Steven. 2013a. Stop the Nonsense: Nobody is proposing a boycott of ‘the
Jews’. Mondoweiss http://mondoweiss.net/2013/12/nonsense-proposing-boycott/

Salaita, Steven. 2013b. Why the ASA Israel Boycott Won. Electronic Intifada.
https://electronicintifada.net/blogs/steven-salaita/why-asas-israel-boycott-won

Salaita, Steven. 2015. Uncivil Rites: Palestine and the Limits of Academic Freedom.
Chicago: Haymarket Books.

Salaita v. Kennedy et al, No. 1:2015cv00924 - Document 59 (N.D. Ill. 2015). Judge
Harry D. Leinenweber. http://law.justia.com/cases/federal/district-
courts/illinois/ilndce/1:2015cv00924/306078/59/

Steinberg, Joseph. 2015. How a Single Social Media Blunder Cost a University $2
Million. Inc. http://www.inc.com/joseph-steinberg/how-a-single-social-media-
blunder-cost-a-university-$2-million.html

Students for Salaita. 2016 (April 26). American University of Beirut students protest
in support of Steven Salaita as school president intervenes to cancel hiring process.
Mondoweiss. http://mondoweiss.net/2016/04/american-university-of-beirut-
students-protest-in-support-of-steven-salaita-as-school-president-intervenes-to-
cancel-hiring-process

Squires, Andrew. 2015. Garcetti and Salaita: Revisiting Academic Freedom. Journal
of Academic Freedom, vol. 6. https://www.aaup.org/JAF6/garcetti-and-salaita-
revisiting-academic-freedom#.WB88rzKZM9c


Summers, Juana. 2014 (May 25). Educators Not Satisfied With Revised Kansas Social
Media Policy. NPR.
http://www.npr.org/sections/ed/2014/05/25/315837245/educators-not-
satisfied-with-revised-kansas-social-media-policy

Tiede, Hans-Joerg. 2015. University Reform: The Founding of the American
Association of University Professors. Baltimore: Johns Hopkins University Press.

UIUC (University of Illinois Urbana Champaign) 2015a (August 7). Potential FOIA
Compliance Issue Discovered and Reviewed.
http://uofi.uillinois.edu/emailer/newsletter/77321.html

UIUC 2015b (August 7). Supplemental FOIA release of emails related to Salaita case.
https://www.uillinois.edu/common/pages/DisplayFile.aspx?itemId=294204

Veysey, Laurence. 1965. The Emergence of the American University. Chicago:
University of Chicago Press.

Wilson, John K. 2014a. Chancellor Phyllis Wise Explains the Firing of Steven Salaita.
Academe. https://academeblog.org/2014/08/22/chancellor-phyllis-wise-explains-
the-firing-of-steven-salaita/

Wilson, John K. 2014b. University of Illinois Board of Trustees Statement on Salaita
Case. Academe. https://academeblog.org/2014/08/22/university-of-illinois-board-
of-trustees-statement-on-salaita-case/

Wilson, John K. 2015. Academic Freedom and Extramural Utterances: The Leo Koch
and Steven Salaita Cases at the University of Illinois. Journal of Academic Freedom
vol. 6. https://www.aaup.org/JAF6/academic-freedom-and-extramural-utterances-
leo-koch-and-steven-salaita-cases-university#.WB84JjKZM9f

Wise, Phyllis. 2014 (August 22; with undated update). The Principles on Which We
Stand. https://illinois.edu/blog/view/1109/115906

Wurth, Julie. 2014 (September 9). More than 400 sign a letter of support for Wise.
The News-Gazette. http://www.news-gazette.com/news/local/2014-09-09/more-
400-sign-letter-support-wise.html

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